Dauwe v. Fruitland

25CA0542 Dauwe v Fruitland 04-23-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0542
Delta County District Court No. 23CV9
Honorable Mary E. Deganhart, Judge

Daniel W. Dauwe,

Plaintiff-Appellant,

v.

Fruitland Irrigation Company,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE MOULTRIE
Tow and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 23, 2026

Daniel W. Dauwe, Pro Se

Overturf McGath & Hull, P.C., Scott A. Neckers, Sarah A. Thomas, Denver,
Colorado, for Defendant-Appellee
¶1 Plaintiff, Daniel W. Dauwe, appeals the district court’s entry of

judgment dismissing his lawsuit against defendant, Fruitland

Irrigation Company (Fruitland). We affirm.

I. Background

¶2 Fruitland is a mutual irrigation company1 that delivers water

to its shareholders via an irrigation canal (the ditch). Fruitland has

owned and operated the ditch for over a century. The ditch has

historically irrigated approximately 5,000 acres of surrounding land

and predominantly traverses privately owned land, including

Dauwe’s property that he purchased in September 2020. It’s

undisputed that Fruitland holds a prescriptive easement over

Dauwe’s property to maintain the ditch. Dauwe has never asserted

any right to receive water from the ditch.

¶3 The ditch was originally constructed as an earthen, open-air

irrigation canal. Fruitland wanted to improve its irrigation delivery

system by piping or lining sections of the ditch that weren’t already

1 Mutual irrigation companies “operate on the premise that the

company owns the water rights and other property, including ditch
easements, and the shareholders have the right to use the water on
their lands.” E. Ridge of Fort Collins, LLC v. Larimer & Weld
Irrigation Co., 109 P.3d 969, 973 (Colo. 2005).

1
piped or lined (the project). Thus, in 2014, Fruitland retained an

engineering firm, Applegate Group, Inc. (Applegate), to evaluate

possible improvements to the ditch and funding sources. It was

determined that the project would improve the efficiency of

Fruitland’s irrigation water delivery and eliminate seepage from the

ditch into saline soils. Ultimately, Fruitland received both state and

federal funding for the project, which included funding from the

Salinity Control Program administered by the Bureau of

Reclamation (BOR).

¶4 Applegate and Fruitland began the design and permitting

process for the project in 2018. As part of that process, the BOR, in

conjunction with a private consultant and other state and federal

agencies, prepared an environmental assessment in September

2019.

¶5 After receiving the necessary permits and approval, Fruitland

began construction in late 2019. In May 2022, Fruitland sent

landowners affected by construction on their property a letter

requesting that the landowners provide information regarding their

preferences for disposal of the debris generated from the project’s

construction. Ed O’Hayre — a neighbor with property adjacent to

2
Dauwe’s — responded to the letter and requested that the portion of

the ditch that crossed his land be piped rather than lined, and

Fruitland accommodated that request.

¶6 The construction on O’Hayre’s property began in April 2023.

And because Fruitland piped the ditch on O’Hayre’s property, the

project was modified to include, among other things, installation of

a concrete headwall at the pipe intake between Dauwe’s and

O’Hayre’s respective properties (intake headwall). Fruitland also

installed a rack on the intake headwall to prevent debris, animals,

or people from being pulled into the pipe.

¶7 The rack is pictured below before a protective “cage” was

installed around it.

3
The Intake Headwall with Just a Rack

¶8 Around the same time, Dauwe reached out to Fruitland for the

first time to express his concerns about the impact that the project

would have on his property and requested a similar accommodation

of piping the ditch as had been arranged with O’Hayre. Fruitland

communicated that it wouldn’t pipe the ditch on Dauwe’s property;

rather, it would continue with its original plans of lining the ditch.

¶9 Dauwe then filed a motion for injunctive relief and sought to

enjoin Fruitland from completing the ditch lining work occurring on

his property. After a hearing, the court denied Dauwe’s request as

4
moot because Fruitland had already substantially completed the

lining work. Subsequently, Dauwe filed an amended complaint in

which he asserted twenty-two claims for relief.

¶ 10 Fruitland filed multiple motions to dismiss under C.R.C.P.

12(b)(5) that sought to dismiss twelve of Dauwe’s claims.2

Construing Fruitland’s filings as motions for judgment on the

pleadings under Rule 12(c), the court dismissed eleven of Dauwe’s

claims3 (order of dismissal).

¶ 11 About nine months after the court entered the order of

dismissal, Dauwe filed an opposed motion requesting that the court

allow him to further amend and supplement his complaint (motion

to amend). The court denied Dauwe’s motion to amend, reasoning

that any further amendment or supplementation would be futile

(order denying amendment).

¶ 12 Not long after, Dauwe asserted that Fruitland’s discovery

responses were deficient and requested the court to hold a hearing

2 Fruitland sought dismissal of claims six, ten, twelve, and fourteen

through twenty-two.
3 The court didn’t grant the request to dismiss claim six, which

alleged damages under the Clean Water Act (CWA), 33 U.S.C.
§§ 1251-1387.

5
on discovery disputes. After holding a hearing, the court found that

(1) Fruitland “had fully and completely complied with discovery

requests from [Dauwe]”; (2) “additional documents sought by

[Dauwe] [were] not relevant to the remaining claims”; and (3) many

of the documents requested by Dauwe were available to him

because they were public records (discovery order).

¶ 13 The following week, Fruitland filed a motion for summary

judgment regarding Dauwe’s eleven remaining claims.4 Dauwe also

filed a motion asking the court to grant summary judgment on

claim three of his amended complaint. The court issued a written

order granting Fruitland’s summary judgment motion and denying

Dauwe’s (summary judgment order).

¶ 14 Dauwe appeals, arguing the court committed various errors or

abused its discretion when it entered the (1) order of dismissal;

(2) order denying amendment; (3) discovery order; and (4) summary

judgment order. For the reasons discussed below, we affirm the

judgment.

4 In its motion for summary judgment, Fruitland requested that

claims one through nine, eleven, and thirteen be dismissed.

6
II. Dauwe Abandoned Certain Arguments and Claims on Appeal

¶ 15 Dauwe identifies in his notice of appeal an order from May

2024 in which the court declined to rule on two motions he filed for

the determination of a question of law. Because he makes no

argument about it in his opening brief, we deem any argument

challenging that order abandoned. See In re Marriage of Marson,

929 P.2d 51, 54 (Colo. App. 1996) (issues identified in the notice of

appeal but not addressed in the opening brief are abandoned).

¶ 16 We likewise conclude Dauwe has abandoned claims three

(trespass), eight (continuing trespass), thirteen (fraud on the court),

and nineteen (civil conspiracy) because he doesn’t challenge the

court’s dismissal of them on appeal. See Armed Forces Bank, N.A.

v. Hicks, 2014 COA 74, ¶ 38 (arguments raised in the trial court but

not pursued on appeal are deemed abandoned). Similarly, because

Dauwe doesn’t challenge the court’s denial of his request to

supplement his amended complaint with claims for deprivation of

property, defamation, and nuisance, we deem those claims

abandoned. See id.

7
III. The District Court Didn’t Have Jurisdiction Over Dauwe’s
Claim Asserting Violations of the Clean Water Act (CWA)

¶ 17 Dauwe alleges in claim six that Fruitland’s actions destroyed a

wetland and violated the CWA.5 See generally 33 U.S.C.

§§ 1251-1387. Specifically, he alleges that, under the Supreme

Court’s decision in Sackett v. Environmental Protection Agency, 598

U.S. 651 (2023), the water conveyed through the ditch is a “[w]ater

of the United States” protected by the provisions of the CWA. And

he argues that Fruitland violated federal rules and regulations

implementing the CWA when it “filled a jurisdictional wetland with

dirt and/or concrete.”

¶ 18 Apparently recognizing a potential jurisdictional issue, Dauwe

asserts in his complaint that citizen suits brought under 33 U.S.C.

§ 1365 aren’t required to be brought in federal court. The court

didn’t address whether it had jurisdiction to consider the merits of

claim six. Rather, the court addressed — and rejected — the merits

of claim six in its summary judgment order.

5 Dauwe doesn’t specify which section of the CWA Fruitland

purportedly violated.

8
¶ 19 Neither party addresses in their briefing whether the district

court had subject matter jurisdiction to consider the merits of claim

six. But we can consider on our own whether a district court had

subject matter jurisdiction. See Zook v. El Paso County, 2021 COA

72, ¶ 8 (subject matter jurisdiction can be raised at any time and

upon a court’s own motion).

¶ 20 Contrary to Dauwe’s assertion otherwise, citizen suits under

the CWA must be brought in federal court. Indeed, 33 U.S.C.

§ 1365(a) explicitly provides that “[t]he district courts shall have

jurisdiction.” The statute’s reference to “district courts” means

federal district courts, not state district courts. Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 173

(2000) (“Congress authorized the federal district courts to entertain

Clean Water Act suits initiated by ‘a person or persons having an

interest which is or may be adversely affected.’” (quoting 33 U.S.C.

§ 1365(a), (g))); Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d

1133, 1135 (10th Cir. 2005) (noting that the CWA confers

jurisdiction on the federal courts to hear citizen suits brought

alleging violations of the CWA). Thus, we conclude that the court

9
erred by reaching the merits of claim six because claims alleging

violations of the CWA must be brought in federal court.

¶ 21 Nevertheless, we can affirm the court’s ruling on any

record-supported basis. See Neher v. Neher, 2015 COA 103, ¶ 33.

The court dismissed claim six with prejudice. And because

§ 1365(a) is an insurmountable barrier to a state district court

exercising jurisdiction over the allegations in claim six, the court’s

dismissal of that claim with prejudice was appropriate. See Woo v.

El Paso Cnty. Sheriff’s Off., 2020 COA 134, ¶ 30, aff’d on other

grounds, 2022 CO 56.

IV. The Court Properly Dismissed Claims Ten, Twelve, Eighteen,
and Twenty Through Twenty-Two Under C.R.C.P. 12(c)

¶ 22 We review de novo whether a court properly granted a motion

for judgment on the pleadings under C.R.C.P. 12(c). Brown v. Long

Romero, 2021 CO 67, ¶ 17. “Judgment on the pleadings is

appropriate if, from the pleadings, the moving party is entitled to

judgment as a matter of law.” City & County of Denver v. Qwest

Corp., 18 P.3d 748, 754 (Colo. 2001).

¶ 23 “We evaluate a [motion for] judgment on the pleadings the

same as we would evaluate a motion to dismiss under Rule

10
12(b)(5),” Spectrum Ret. Cmties., LLC v. Cont’l Cas. Co., 2025 COA

57, ¶ 14 (cert. granted Jan. 20, 2026), meaning we “must construe

the allegations of the pleadings strictly against the movant, must

consider the allegations of the opposing part[y’s] pleadings as true,

and should not grant the motion unless the pleadings themselves

show that the matter can be determined on the pleadings,” Brown,

¶ 17 (citation omitted).

¶ 24 Furthermore, a plaintiff’s allegations must assert a plausible

claim for relief. See Warne v. Hall, 2016 CO 50, ¶ 24. A claim is

plausible when its factual allegations raise a right to relief above the

speculative level. See Adams Cnty. Hous. Auth. v. Panzlau, 2022

COA 148, ¶ 50. Thus, a plausible claim for relief must “contain

either direct or inferential allegations respecting all the material

elements necessary to sustain a recovery under some viable legal

theory.” Id. at ¶ 51 (citation omitted). However, we aren’t required

to accept as true legal conclusions that are couched as factual

allegations. Fry v. Lee, 2013 COA 100, ¶ 17.

A. Claim Ten: Negligence in Design

¶ 25 Dauwe alleges that Fruitland “failed to install a cage around

the intake [headwall],” which he asserts “poses a threat to human

11
safety.” He concedes that Fruitland had installed the cage by the

time he filed his amended complaint. However, because Fruitland

didn’t install the cage in the timeframe he desired, he argues

Fruitland’s behavior was in “bad faith,” thereby warranting

exemplary damages.

¶ 26 The “cage” is pictured below.

The Intake Headwall with a Rack and a Cage

¶ 27 “In order to establish a prima facie case for negligence, a

plaintiff must show a legal duty of care on the defendant’s part,

breach of that duty, injury to the plaintiff, and causation, i.e., that

12
the defendant’s breach caused the plaintiff’s injury.” HealthONE v.

Rodriguez, 50 P.3d 879, 888 (Colo. 2002). If a plaintiff fails to

establish any one of these elements, he can’t prevail on his

negligence claim. See Leaf v. Beihoffer, 2014 COA 117, ¶ 12. The

duty of care for a ditch owner is “ordinary care, such as a man of

average prudence and intelligence would use, under like

circumstances, to protect his own property.” Oliver v. Amity Mut.

Irrigation Co., 994 P.2d 495, 497 (Colo. App. 1999) (quoting City of

Boulder v. Fowler, 18 P. 337, 337 (Colo. 1888)).

¶ 28 Accepting Dauwe’s allegations as true, they don’t plausibly

state a claim for negligence. Dauwe communicated his concerns

about the potential safety risk the intake headwall created on his

property and asked Fruitland to install a cage around it. And

Dauwe concedes that Fruitland installed a cage around the intake

headwall as he requested. But he doesn’t allege Fruitland’s delayed

installation of the cage caused him any injuries. And “[a]bsent

injury, there is no action.” Farmers Grp., Inc. v. Trimble, 658 P.2d

1370, 1374 (Colo. App. 1982), aff’d, 691 P.2d 1138 (Colo. 1984).

13
B. Claim Twelve: Reduction in Property Value

¶ 29 Dauwe alleges that the project has caused a reduction in his

property value. But reduction in property value isn’t a stand-alone

claim; rather, it’s a remedy for damages caused by trespass —

meaning Dauwe must first establish that a trespass has occurred.

Trask v. Nozisko, 134 P.3d 544, 554 (Colo. App. 2006) (recoverable

damages for trespass claims can include diminution of market

value, costs of restoration, and loss of use of the property). Because

Dauwe alleges trespass in claims one, two, four, and seven, any

resulting damages must be addressed under those claims. Thus,

we agree with the district court that claim twelve was duplicative of

his other trespass-based claims. See Barham v. Scalia, 928 P.2d

1381, 1387 (Colo. App. 1996) (a court may dismiss duplicative

claims).

C. Claim Eighteen: Fraudulent Concealment

¶ 30 Dauwe’s fraudulent concealment claim is premised on his

allegations that certain conservation easements “unequivocally”

prohibited the project and Fruitland concealed from the BOR its

knowledge of such easements. He further alleges that Fruitland’s

14
“false representation by omission induced the [BOR] to approve the

award of the grant,” which enabled the destruction of his property.

¶ 31 To establish a claim for fraudulent concealment, a plaintiff

must prove, among other things, that the defendant had a duty to,

but didn’t, disclose material information to the plaintiff. Rocky

Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 2018 CO 54,

¶ 56.

¶ 32 Here, Dauwe was aware of the conservation easements.

Indeed, in support of claim eighteen, he provides the county

recorder reception numbers for the easements, thereby

demonstrating that the easements were publicly recorded. See

§ 30-10-409(2), C.R.S. 2025 (a document filed with the county clerk

and recorder is endorsed with a reception number).

¶ 33 The proper recording of a document evidencing an

encumbrance — like a conservation easement — provides

constructive notice to everyone that such encumbrance exists. See

Meyer v. Haskett, 251 P.3d 1287, 1293 (Colo. App. 2010) (“When an

instrument regarding property is properly recorded, constructive

notice is provided to all.”). And a party has no duty to disclose a

15
public document that is equally available to all parties. See Averyt

v. Wal-Mart Stores, Inc., 265 P.3d 456, 459 (Colo. 2011).

¶ 34 Thus, even assuming Dauwe has standing to assert a claim

based on Fruitland’s alleged failure to disclose the easements to the

BOR rather than to him, we conclude that Fruitland had no duty to

disclose the easements because the BOR had constructive notice of

them. See Burman v. Richmond Homes Ltd., 821 P.2d 913, 919

(Colo. App. 1991) (rejecting plaintiffs’ claim for fraudulent

concealment when plaintiffs, based on publicly recorded

documents, had constructive notice of material facts defendants

allegedly failed to disclose). Accordingly, we conclude that Dauwe

fails to allege a plausible claim for fraudulent concealment.

D. Claim Twenty: Abuse of Process

¶ 35 Dauwe’s abuse of process claim is premised on his assertion

that Fruitland failed to follow a required legal process.

¶ 36 As best we understand, Dauwe alleges that under Roaring Fork

Club, L.P., v. St. Jude’s Co., 36 P.3d 1229 (Colo. 2001), Fruitland

was required to either obtain his consent or obtain a declaratory

judgment before making any modifications to the ditch. In Roaring

Fork Club, the supreme court held that the owner of property

16
burdened by a ditch easement may not alter the easement without

first obtaining the easement holder’s consent or a declaratory

judgment. Id. at 1231. Dauwe argues that Fruitland’s failure to

follow the “procedure” in Roaring Fork Club constitutes “negative

abuse of process.”

¶ 37 To prevail on an abuse of process claim, a plaintiff must prove

(1) an ulterior purpose for the use of a judicial proceeding; (2) willful

use of a legal proceeding in an improper manner; and (3) resulting

damage. Walker v. Van Laningham, 148 P.3d 391, 394 (Colo. App.

2006). The first two elements require that a defendant must use a

judicial process or proceeding in order for a plaintiff to have a

cognizable claim for abuse of process. See id.; see also Moore v. W.

Forge Corp., 192 P.3d 427, 438 (Colo. App. 2007) (noting that use of

a judicial process is fundamental to establishing an abuse of

process claim). Thus, “negative abuse of process” isn’t a cognizable

claim. And in any event, Roaring Fork Club is factually

distinguishable because Dauwe isn’t the easement holder —

Fruitland is. Therefore, accepting Dauwe’s allegations as true, he

hasn’t alleged any facts demonstrating that Fruitland abused a

judicial proceeding.

17
E. Claim Twenty-One: Violation of Section 37-84-119, C.R.S.
2025

¶ 38 Under section 37-84-119, irrigation ditch owners must ensure

irrigation ditches are maintained “in good order and repair, ready to

receive water by April 1 in each year” and must deliver water “to

persons having paid-up shares or who have rights to the use of

water.” Dauwe alleges that Fruitland’s lining of the ditch after

April 1 when the ditch is supposed to be operational is “illegal and

ill-advised.”6

¶ 39 “Standing is a threshold issue that must be satisfied in order

for a court to decide a case on the merits.” Barber v. Ritter, 196

P.3d 238, 245 (Colo. 2008). To establish standing, a plaintiff must

demonstrate that he has suffered an injury in fact to a legally

protected right. City of Greenwood Village v. Petitioners for the

Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000) (“[P]arties

6 Dauwe also argues that section 37-84-119, C.R.S. 2025, protects

the public and adjacent landowners in addition to shareholders,
and he references section 37-80-102, C.R.S. 2025, and section
37-87-108, C.R.S. 2025, in support. Because he doesn’t develop
this argument, we don’t consider it. See Barnett v. Elite Props. of
Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010).

18
actually protected by a statute or constitutional provision are

generally best situated to vindicate their own rights.”).

¶ 40 Thus, to have standing to bring a claim under section

37-84-119, a plaintiff must be a shareholder or someone with rights

to use the water. Although we can broadly construe Dauwe’s

amended complaint because he is self-represented, Jones v.

Williams, 2019 CO 61, ¶ 5, we won’t rewrite it for him, Minshall v.

Johnston, 2018 COA 44, ¶ 21. And even broadly construing

Dauwe’s amended complaint, Dauwe has alleged neither that he is

a shareholder or other person entitled to receive water from the

ditch nor that there was a delay in the delivery of water from the

ditch. See City of Greenwood Village, 3 P.3d at 437. He therefore

lacks standing to bring a claim under section 37-84-119.

F. Claim Twenty-Two: Outrageous Conduct

¶ 41 To prevail on an outrageous conduct claim, a plaintiff must

prove that the defendant (1) engaged in extreme and outrageous

conduct; (2) did so recklessly or with the intent of causing the

plaintiff severe emotional distress; and (3) caused the plaintiff

severe emotional distress. Reigel v. SavaSeniorCare L.L.C., 292 P.3d

977, 990 (Colo. App. 2011). “Outrageous conduct” is that which is

19
“so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Id.

(citation omitted). A defendant isn’t liable for “[m]ere insults,

indignities, threats, annoyances, petty oppressions, or other

trivialities.” Id. (citation omitted).

¶ 42 Dauwe alleges that Fruitland’s “extreme actions such as

multiple instances of serious misrepresentation, fraud, gross

violation of the easement, abuse of process, and the wanton

violation of federal laws protecting [his property]” have caused him

“grave emotional distress.” He also asserts that he’s been

threatened by attorneys, lied to, and called a frivolous litigant.

¶ 43 Thus, the primary factual allegations supporting this claim

consist of his allegations that Fruitland “grossly” violated the

easement and federal laws, and that its attorneys threatened him,

lied to him, and called him frivolous. Dauwe also attempts to

support his outrageous conduct claim by referencing other claims

based on Fruitland’s same conduct — which is insufficient. See

Hewitt v. Pitkin Cnty. Bank & Tr. Co., 931 P.2d 456, 459 (Colo. App.

1995) (affirming trial court’s dismissal of outrageous conduct claim

20
unsupported by independent factual allegations). And, even viewed

in the light most favorable to Dauwe, his remaining allegations

don’t rise to the level of the extreme, atrocious, or utterly intolerable

type of conduct necessary to prevail on an outrageous conduct

claim. Compare Danyew v. Phelps, 676 P.2d 707, 709 (Colo. App.

1983) (concluding that the wrongful eviction of a tenant without

notice while the tenant was hospitalized supported a claim for

outrageous conduct), with Zueger v. Goss, 2014 COA 61, ¶ 38

(concluding that defendant’s disparaging statements about plaintiffs

on the internet didn’t constitute outrageous conduct).

V. We Affirm the Court’s Dismissal of Claims Fourteen Through
Seventeen on Alternate Grounds

¶ 44 In claims fourteen through seventeen (collectively, fraudulent

misrepresentation claims), Dauwe alleges that Fruitland made

fraudulent misrepresentations to the BOR in the environmental

assessment. Specifically, Dauwe asserts that Fruitland provided

the BOR with false information about “salinity reduction” (claim

fourteen), the project’s potential impact on wetlands (claim fifteen),

and Fruitland’s access rights under the prescriptive easement

(claims sixteen and seventeen). And he asserts that these

21
fraudulent misrepresentations induced the BOR to award Fruitland

funds for the project, which in turn enabled the destruction of his

property.

¶ 45 A plaintiff establishes a claim for fraudulent misrepresentation

by proving that (1) the defendant fraudulently misrepresented a

material fact to the plaintiff; (2) the plaintiff relied on the

misrepresentation; (3) the plaintiff had a right to rely on or was

justified in relying on the misrepresentation; and (4) the plaintiff’s

reliance resulted in damages. Barnes v. State Farm Mut. Auto. Ins.

Co., 2021 COA 89, ¶ 28. A fraudulent representation made to the

class of persons that the defendant intended to influence, and of

which the plaintiff is a part, may be sufficient to sustain a claim for

fraudulent misrepresentation. Mead & Mount Constr. Co. v. Fox

Metal Indus., Inc., 511 P.2d 509, 510 (Colo. App. 1973).

22
¶ 46 The court dismissed the fraudulent misrepresentation claims7

because it concluded that Dauwe lacked standing to bring those

claims on behalf of the BOR. But the environmental assessment

says it was provided to private landowners that would be potentially

impacted by the project. Thus, we draw a reasonable inference in

Dauwe’s favor that he was a member of the class that the

information in the environmental assessment was intended to

influence. See id.

¶ 47 Nevertheless, we affirm the court’s judgment because we

conclude that Dauwe’s fraudulent misrepresentation claims were

not otherwise plausibly pleaded. See Neher, ¶ 33; Ice v. Benedict

Nuclear Pharms., Inc., 797 P.2d 757, 760 (Colo. App. 1990) (if a

plaintiff fails to prove one of the elements of fraudulent

misrepresentation, then the claim necessarily fails).

7 In the order of dismissal, the court stated that it was dismissing

claims seventeen and eighteen and characterized those claims as
the claims in which Dauwe alleged that Fruitland made fraudulent
misrepresentations regarding its rights to access landowners’
property under the easement. However, Dauwe made those
allegations in claims sixteen and seventeen. This error doesn’t
impact our analysis.

23
¶ 48 We initially note that the environmental assessment was

created by a private consultant on the BOR’s behalf, rather than by

Fruitland. But even accepting as true Dauwe’s assertion that

Fruitland, in its application for grant funding, provided false

information to the BOR, which in turn led the private consultant to

create a “deceptive” environmental assessment upon which the BOR

relied in deciding to fund the project, Dauwe doesn’t allege that he

relied on the environmental assessment in any way. On the

contrary, he only asserts that the BOR relied on the environmental

assessment. Said differently, Dauwe doesn’t allege any facts from

which we can reasonably infer that his own reliance on the

environmental assessment resulted in damages to his property. See

Barnes, ¶ 28. His fraudulent misrepresentation claims therefore

fail.

VI. The Court Properly Denied Dauwe’s Request to Amend or
Supplement His Amended Complaint

A. Applicable Legal Principles

¶ 49 C.R.C.P. 15(a) requires parties to obtain court authorization to

amend pleadings in certain instances. “[T]rial courts are

encouraged to look favorably on requests to amend pleadings.” Am.

24
C.L. Union of Colo. v. Whitman, 159 P.3d 707, 712 (Colo. App. 2006);

see C.R.C.P. 15(a) (leave to amend pleadings “shall be freely given

when justice so requires”). But if a proposed amendment would be

futile, a court may deny the request for leave to amend. Whitman,

159 P.3d at 712. A proposed amendment to a complaint is futile if

it “merely restates the same facts as the original complaint in

different terms, reasserts a claim on which the court previously

ruled, fails to state a legal theory, or could not withstand a motion

to dismiss.” Id. at 712-13.

¶ 50 Rule 15(d) concerns supplemental pleadings and permits a

party to request leave of the court to supplement a pleading based

on events that occurred after the date of the pleading. See Eagle

River Mobile Home Park, Ltd. v. Dist. Ct., 647 P.2d 660, 662 n.3

(Colo. 1982) (“Amended and supplemental pleadings differ in that

the former relate to matters occurring before the filing of the

original pleading and entirely replace the original pleading, while

the latter concern events subsequent to the original pleading and

constitute only additions to the earlier pleading.”).

¶ 51 We review de novo a district court’s determination that a

party’s request to amend or supplement a pleading would be futile

25
because it wouldn’t overcome a motion to dismiss. Gandy v.

Williams, 2019 COA 118, ¶ 14.

B. Analysis

1. Proposed Amendment of Fraud on the Court Claim

¶ 52 In his amended complaint, Dauwe asserted a claim alleging

that Fruitland had committed “fraud on the court” by making false

statements to the court regarding the extent of the project’s

completion, which led the court to erroneously deny his request for

an injunction. Dauwe asked the court for authorization to “convert”

or amend his fraud on the court claim to a claim for outrageous

conduct. The court denied his request.

¶ 53 The court dismissed Dauwe’s fraud on the court claim before

he asked to amend it. As already noted in Part II, he doesn’t

challenge the court’s dismissal of that claim on appeal. And while

providing false information to the court is unethical and can subject

a party to sanctions, Dauwe doesn’t cite, and we can’t find, any

authority to support the proposition that doing so is sufficient to

support an outrageous conduct claim. See Reigel, 292 P.3d at 990.

Accordingly, we conclude that Dauwe’s attempt to amend his fraud

26
on the court claim by converting it to an outrageous conduct claim

was futile. See Whitman, 159 P.3d at 712-13.

2. Proposed Supplemental Outrageous Conduct Claim

¶ 54 Dauwe asked to “amend” his dismissed abuse of process claim

by instead asserting a claim for outrageous conduct against

Fruitland. His request was based on his contention that Fruitland’s

attorney lied to the court about the applicability of Roaring Fork

Club in its response to one of his motions for determination of a

question of law. Because these circumstances occurred after he

filed his amended complaint, we construe Dauwe’s argument as an

attempt to supplement his amended complaint with an additional

outrageous conduct claim. See Eagle River, 647 P.2d at 662 n.3.

¶ 55 Dauwe argues that the alleged conduct of Fruitland’s attorney

is “outrageous” and unethical. We conclude Dauwe’s allegations

are insufficient to support an outrageous conduct claim for two

reasons. First, as already discussed, the type of conduct sufficient

to support an outrageous conduct claim is exceedingly rare. See

Reigel, 292 P.3d at 990. And generally, an attorney’s alleged

misconduct that violates the Colorado Rules of Professional

Conduct isn’t, without more, a basis for civil liability. See Moye

27
White LLP v. Beren, 2013 COA 89, ¶ 31. Second, as also discussed,

the holding of Roaring Fork Club is inapplicable to the

circumstances of this case. Thus, Dauwe’s request to supplement

his amended complaint with an additional outrageous conduct

claim was futile. See Whitman, 159 P.3d at 712-13.

3. Proposed Supplemental Abuse of Process Claim

¶ 56 Fruitland requested its costs and attorney fees under section

13-17-102, C.R.S. 2025, and C.R.C.P. 11 for defending against the

claims the court dismissed in its order of dismissal.

¶ 57 Dauwe asserts that as a self-represented litigant, he can’t be

sanctioned under section 13-17-102 or Rule 11 for making frivolous

claims. Consequently, he sought to add a supplemental abuse of

process claim to his amended complaint in response to Fruitland’s

request for fees and costs.

¶ 58 Section 13-17-102(6) authorizes a court to award attorney fees

if it finds that a self-represented litigant “clearly knew or reasonably

should have known” that all or part of their litigation was

“substantially frivolous, substantially groundless, or substantially

vexatious.”

28
¶ 59 Rule 11(a) requires attorneys and self-represented parties to

sign pleadings. The rule provides that an attorney’s signature

certifies that the pleading is grounded in fact, warranted by existing

law or a good faith legal argument, and not filed for any improper

purpose. C.R.C.P. 11(a). It also allows a court to appropriately

sanction a party if they sign a pleading in violation of the rule,

including by ordering a party to pay another party “the amount of

the reasonable expenses incurred because of the filing of the

pleading, including a reasonable attorney’s fee.” C.R.C.P. 11(a).

And while Rule 11 expressly addresses an attorney’s signature on a

pleading serving as a certification regarding the pleading’s

appropriateness, “[a] pro se litigant who chooses to rely upon his

own understanding of legal principles and procedures is required to

follow the same procedural rules as those who are qualified to

practice law and must be prepared to accept the consequences of

his mistakes and errors.” Al-Hamim v. Star Hearthstone, LLC, 2024

COA 128, ¶ 34 (quoting Rosenberg v. Grady, 843 P.2d 25, 26 (Colo.

App. 1992)).

¶ 60 As discussed in Part IV.D, an abuse of process claim requires

a plaintiff to demonstrate he suffered damages as a result of the

29
defendant’s willful use of a legal proceeding in an improper manner

for an ulterior purpose. But Dauwe mischaracterizes the argument

supporting Fruitland’s request and, in any event, doesn’t allege he

suffered any damages as a result of Fruitland’s request. Dauwe’s

proposed supplemental claim for abuse of process therefore lacks

both the legal and factual support necessary to state a plausible

claim. The court thus properly denied it as futile. See Whitman,

159 P.3d at 712-13.

VII. Claims One, Two, Four, Five, Seven, Nine, and Eleven Were
Properly Dismissed Under C.R.C.P. 56

¶ 61 We review de novo a district court’s ruling on a motion for

summary judgment and apply the same standards as the district

court. City of Fort Collins v. Colo. Oil & Gas Ass’n, 2016 CO 28, ¶ 9.

Summary judgment is appropriate when there is no genuine issue

as to any material fact and the moving party is entitled to judgment

as a matter of law. Id. at ¶ 8; see C.R.C.P. 56(c). It’s the moving

party’s burden to establish the nonexistence of a genuine issue of

material fact, and we grant the nonmoving party the benefit of all

favorable inferences reasonably drawn from the facts. Univ. of

Denv. v. Doe, 2024 CO 27, ¶ 8.

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¶ 62 “Expert affidavits may be used to support or resist a motion

for summary judgment.” White v. Jungbauer, 128 P.3d 263, 264

(Colo. App. 2005). When a nonmoving party responds to a properly

supported motion for summary judgment, the nonmoving party may

not simply rest on their allegations or denials of the opposing

party’s pleadings but must provide specific facts demonstrating a

genuine issue for trial. City of Fort Collins, ¶ 8; see C.R.C.P. 56(e);

see also White, 128 P.3d at 264 (“[A]ffidavits containing mere

conclusions are insufficient to satisfy the burden of showing the

existence or absence of a genuine issue of material fact.”).

A. Claims One, Two, Four, and Seven: Trespass-Based Claims

¶ 63 Dauwe’s trespass-based claims allege that Fruitland exceeded

the easement’s scope by relocating the ditch (claim one), widening it

(claim two), expanding the easement boundaries (claim four), and

destroying trees and vegetation “far beyond the historical easement

boundary and beyond what was required for the project” (claim

seven). See Trask, 134 P.3d at 554 (the tort of “trespass” consists of

a physical intrusion upon another’s property without proper

permission from the person legally entitled to possession of that

property).

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¶ 64 In its motion for summary judgment, Fruitland argued that

(1) it hadn’t relocated the ditch or expanded the extent of the

easement’s boundaries and (2) it can’t trespass within its own

easement when it does work that is reasonable and necessary to

operate and maintain the ditch.

¶ 65 Fruitland presented multiple documents in support of its

motion for summary judgment. Among them were an affidavit from

Craig Ullman, Applegate’s president and senior water resource

engineer, and an associated report authored by Ullman. Ullman

said the following in his affidavit:

• He had been involved with the project since 2014.

• Applegate used aerial survey data to design the project so

that the improved ditch didn’t deviate from the existing

ditch.

• The ditch wasn’t relocated or widened during the project.

• The project was completed in an area of the easement

that was reasonable and necessary for the ongoing

operation and maintenance of the ditch.

• “Vegetation and trees were removed from the area

immediately adjacent to the [d]itch as part of the

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[p]roject. All trees and vegetation were within Fruitland’s

easement in an area that was reasonable and necessary

for the [p]roject and the ongoing operation and

maintenance of the [d]itch.”

¶ 66 Dauwe filed a response to the motion for summary judgment.

He argued that the project exceeded the scope of the prescriptive

easement and asserted, “[Fruitland] can’t move the ditch [and]

[Fruitland] can’t increase the width of the ditch.” He submitted an

affidavit in support of his response, in which he said the following:

• He used Google Earth photos from 2019 and 2024 to

compare the location of the old ditch with the location of

the new ditch, and the new ditch’s location deviated

several feet from the old ditch’s location.

• The new ditch isn’t in the same alignment as the old

ditch.

• The width of the ditch at ground level is twelve feet wide.

His affidavit didn’t address the removal of trees or other vegetation.

¶ 67 The court granted summary judgment on the trespass-based

claims, concluding that there was no genuine issue of material fact

because Dauwe hadn’t explained how any of the modifications to

33
the ditch exceeded the scope of the prescriptive easement. In so

concluding, the court noted that, as the owner of the prescriptive

easement, Fruitland had the right to modify the ditch so long as any

modifications were reasonably consistent with the scope of the

easement and didn’t unreasonably damage Dauwe’s property.

¶ 68 On appeal, Dauwe essentially contends that, because the

parties disagreed on the dimensions of the ditch — specifically its

width before and after the project — there were genuine disputes

regarding the material facts. Dauwe contends that Fruitland

“admitted” that the “new ditch was [twelve] feet across,” in contrast

to his own measurements indicating that the “width of the original

ditch on his property was [six] to [eight] feet across.” And he

argues, “For a prescriptive easement[,] the width of the ditch itself is

the sole rigid constraint; it must be [the] same as constructed.”

Dauwe also asserts — without citing any authority in support —

that Fruitland was required to restore the trees and vegetation after

the completion of the project.

¶ 69 We aren’t persuaded.

¶ 70 A prescriptive easement is a “nonexclusive right to use the

land of another for a specified purpose” that arises out of adverse

34
use of the land for that purpose for a minimum of eighteen years.

LR Smith Invs., LLC v. Butler, 2014 COA 170, ¶ 14. It’s an

independent property interest the scope of which is “fixed by the

use through which it was created.” Wright v. Horse Creek Ranches,

697 P.2d 384, 387-88 (Colo. 1985) (quoting Restatement (First) of

Prop. § 477 (A.L.I. 1944)). Unlike an easement expressly granted by

conveyance in a deed or other document, a prescriptive easement is

not necessarily confined to a specific boundary. Gold Hill Dev. Co.,

L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 48; see also Clinger v.

Hartshorn, 89 P.3d 462, 467 (Colo. App. 2003) (“[T]he use under

which a prescriptive interest arises determines [only] the general

outlines rather than the minute details of the interest.” (quoting

Restatement (First) of Prop. § 477 cmt. b.)).

¶ 71 An owner of a water right is entitled to a right-of-way through

property that lies “between the point of diversion and point of

use . . . for the purpose of transporting water for beneficial use in

accordance with said water right.” § 37-86-102, C.R.S. 2025. The

right-of-way includes the right to “operate, clean, maintain, repair,

and replace the ditch and appurtenant structures, to improve the

efficiency of the ditch, including by lining or piping the ditch, and to

35
enter onto the burdened property . . . for all reasonable and

necessary purposes related to the ditch.” § 37-86-103, C.R.S.

2025.8 These rights extend to the bed of the ditch and include

sufficient ground on either side of the ditch to ensure it operates

properly under the circumstances. Shrull v. Rapasardi, 517 P.2d

860, 862 (Colo. App. 1973); see also Osborn & Caywood Ditch Co. v.

Green, 673 P.2d 380, 382 (Colo. App. 1983) (“[T]he dimension of the

access right to maintain the ditch is that which is reasonably

necessary.”).

¶ 72 In support of his argument that the ditch has been widened,

in addition to submitting an affidavit, Dauwe referenced exhibits

submitted to the court before the preliminary injunction hearing.

But the record refutes his argument.

¶ 73 Before the preliminary injunction hearing, Fruitland submitted

to the court a copy of the historical map and filing statement (map

and statement) for the ditch. The map and statement indicate that

Fruitland established the ditch as part of a larger project that

8 The General Assembly significantly amended section 37-86-103,

C.R.S. 2025, in 2019, which was before Fruitland began its
improvement project. See Ch. 54, sec. 1, § 37-86-103, 2019 Colo.
Sess. Laws 190.

36
included creating a nearby reservoir. According to the map and

statement, in the early 1900s, a portion of the ditch measured

twelve feet wide, while other portions of the ditch were impacted by

“varied topographical conditions necessitating various changes in

grade and cross section.” As Fruitland’s development of the ditch

and associated reservoir continued, it was anticipated that

Fruitland would make “extensions, improvements, and

enlargements” of the ditch as necessary to meet its shareholders’

expectations for irrigating the surrounding lands.

¶ 74 Dauwe doesn’t dispute the information contained in the map

and statement. Moreover, he doesn’t dispute that Fruitland holds a

prescriptive easement over his property for the purpose of delivering

irrigation water or that Fruitland continues to use the easement for

that purpose. He also doesn’t dispute Ullman’s statement, made in

his capacity as a water resource engineer involved with the project,

that the modifications to the ditch, including any removal of

vegetation, were reasonable and necessary for the ongoing operation

and maintenance of the ditch. Ullman’s statement is supported by

his report, which indicated that (1) removing overgrown vegetation

was maintenance necessary to restore the ditch’s water flow

37
capacity and (2) lining the ditch with concrete would inhibit future

vegetation growth along the ditch while minimizing the ditch’s

width. Finally, Dauwe didn’t argue that the new width was greater

than twelve feet and didn’t contest that twelve feet was within the

prescriptive easement, which was included in the map and

statement.

¶ 75 And, contrary to Dauwe’s assertion otherwise, Fruitland had

the authority under section 37-86-103 to pipe the ditch as part of

its efforts to improve the ditch’s efficiency. See Baker v.

Safadi-Chamberlain, 2025 COA 63, ¶ 4 (“[S]ection 37-86-103 grants

the right to pipe a ditch only when doing so would improve the

ditch’s efficiency.”).

¶ 76 We recognize that Dauwe didn’t have the benefit of Baker

when he filed his response to the motion for summary judgment.

However, Colorado case law has long recognized that an irrigation

ditch owner’s rights pursuant to a prescriptive easement include

“all that is reasonably necessary to the convenient and proper use

and maintenance of the ditch.” Neville v. Loudon Irrigating Canal &

Reservoir Co., 242 P. 1002, 1002 (Colo. 1926) (citation modified).

38
¶ 77 In sum, even giving Dauwe the benefit of all reasonable

inferences that can be drawn from the undisputed facts, Dauwe

hasn’t demonstrated that Fruitland exceeded the nature and

purpose of the easement by completing the project and, in turn,

committed trespass. Rather, Dauwe merely rests on his

unsupported allegations and conclusions, which is insufficient to

satisfy his burden as Fruitland has demonstrated that there are no

disputed issues of material fact. See City of Fort Collins, ¶ 9; White,

128 P.3d at 264; C.R.C.P. 56(e). Thus, the court didn’t err by

granting summary judgment on his trespass-based claims.

B. Claim Five: Dispossession of Property Without Compensation

¶ 78 Dauwe alleges that Fruitland’s lining of the ditch violated

article XVI, section 7 of the Colorado Constitution because it

resulted in his property being taken without just compensation. He

asserts that Fruitland can’t rely on section 37-86-103 for the

project because “a Colorado statute cannot displace the Colorado

Constitution.” And he argues that under the holding of Roaring

Fork Club, the owner of any “estate seeking to alter an easement”

must first obtain the other estate’s consent or a declaratory

judgment.

39
¶ 79 Again, we aren’t persuaded.

¶ 80 We first reject Dauwe’s reliance on Roaring Fork Club because

it is, once again, unavailing. As discussed in Part IV.D, Fruitland

and Dauwe aren’t similarly situated to the parties in Roaring Fork

Club. Put simply, Dauwe’s assertion that Fruitland is an owner of

an “estate seeking to alter an easement” is incorrect. Rather,

Fruitland’s prescriptive easement is an independent property

interest. Wright, 697 P.2d at 387.

¶ 81 We acknowledge that article XVI, section 7 says in relevant

part that corporations shall have a right-of-way across private

property “for the construction of ditches, canals and flumes for the

purpose of conveying water for domestic purposes, for the irrigation

of agricultural lands . . . upon payment of just compensation.” But,

as we concluded in Part VII.A, Fruitland didn’t exceed the scope of

its prescriptive easement. And because the factual basis in support

of this claim is the same as the factual basis underlying his

trespass-based claims, Dauwe hasn’t demonstrated a genuine issue

of material fact sufficient to survive a motion for summary

judgment. We therefore reject his assertion that the project

resulted in a “taking” that requires him to be compensated.

40
C. Claims Nine and Eleven: Negligence-Based Claims

¶ 82 In claim nine, Dauwe alleges that the intake headwall “was

deficiently designed and caused flooding on [his] property,” which

“will take years before it returns to its natural state.” Dauwe alleges

“negligence in operation” in claim eleven. Specifically, he alleges

that organic debris like tree limbs, twigs, and algae accumulate on

the intake headwall rack, which Fruitland then removes and leaves

on his property. He asserts that the debris “should be removed

from [his] property because it is foreign to the property.”

¶ 83 In Part IV.A, we set forth the elements Dauwe must establish

to prove Fruitland was negligent. See HealthONE, 50 P.3d at 888;

see also Hitti v. Montezuma Valley Irrigation Co., 599 P.2d 918, 921

(Colo. App. 1979) (“[A] ditch owner is liable for any injuries caused

to property from the overflow of water from a ditch which results

directly or indirectly from negligence in the use and repair of the

ditch.”).

¶ 84 Regarding claim nine, even assuming that Dauwe’s property

experienced flooding, Dauwe hasn’t established that Fruitland

breached a duty, which in turn caused flooding that damaged his

property. Conversely, Fruitland — via Ullman’s affidavit — affirmed

41
that “[t]he [p]roject was designed within the standard of care for

canal operators in Colorado.” And Dauwe hasn’t set forth any facts

refuting this in his response or opposing affidavit. Rather, Dauwe

makes the conclusory assertion that “[i]t does not take any special

knowledge or expert witness for a lay person to understand

damages from flooding.” Dauwe also references photos that he

previously submitted to the court9 that he alleges show his property

after the flooding, but those photos don’t establish that his property

was damaged by any flooding or that the intake headwall was

“deficiently designed.”

¶ 85 Likewise, with respect to claim eleven, even assuming that

organic debris accumulates on the intake headwall rack, which

Fruitland then clears and leaves on Dauwe’s property, Dauwe

hasn’t set forth any facts demonstrating that Fruitland breached a

legal duty that caused him to suffer damage.

¶ 86 Thus, Dauwe hasn’t alleged facts sufficient to demonstrate

that there is a genuine issue of material fact regarding whether

9 Dauwe attached the photos to his reply in support of his motion to

amend and supplement his amended complaint. He didn’t mention
flooding in his reply when referencing the photos; instead, he used
the photos to establish the timeline of Fruitland’s lining of the ditch.

42
Fruitland negligently designed or operated the intake headwall. The

court therefore properly granted summary judgment on Dauwe’s

claims nine and eleven. See Leaf, ¶ 12.

VIII. The Court Didn’t Abuse its Discretion by Denying Dauwe’s
Discovery Requests

A. Applicable Legal Principles

¶ 87 “Although the scope of allowable discovery under C.R.C.P. 26

is broad, it is not unlimited.” Garcia v. Centura Health Corp., 2025

CO 15, ¶ 21. And Rule 26(c) allows a court to protect a party from

being compelled to produce certain discovery if complying with the

discovery request would cause that party undue burden or expense.

¶ 88 We review a district court’s discovery orders for an abuse of

discretion. Garcia, ¶ 24. A court abuses its discretion when its

ruling is “manifestly arbitrary, unreasonable, or unfair” or when it

misapplies the law. Rains v. Barber, 2018 CO 61, ¶ 8 (citation

omitted).

B. Analysis

¶ 89 Dauwe argues that Fruitland should have been required to

produce documents in response to the following request for

production: “Provide all records, data, or information relating in any

43
way to the construction, maintenance, operation, and repair of the

canal, over its entire history.” Fruitland objected to the request for

production and asserted that the request was “overly broad, unduly

burdensome, oppressive, and/or vague.” Fruitland further asserted

that (1) its construction, operation, and maintenance of the ditch at

locations other than on Dauwe’s property weren’t relevant; and

(2) the expense of locating and reviewing 120 years of records

outweighed any likely benefit.

¶ 90 Dauwe argues that he “should be allowed to review those

records,” and “[w]hat the judge says about ‘discovery is not required

for public documents’ is absurd.” Absurd or not, the supreme court

has held that, because public documents are equally available to

both parties, Rule 26 doesn’t require production of them. Averyt,

265 P.3d at 460-61. And the district court is bound by that

determination, as are we. See Roane v. Archuleta, 2022 COA 143,

¶ 16 (lower courts are bound by the rule as expressed by our

supreme court), aff’d, 2024 CO 74. Because Dauwe doesn’t

otherwise explain how he believes the court abused its discretion by

denying his discovery request, we decline to consider his argument

44
further. See Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19

(Colo. App. 2010).

IX. Other Issues

¶ 91 Finally, we decline Dauwe’s request that we publish this

opinion to “repudiate” Ute Water Conservancy District v. Fontanari,

2022 COA 125M. We don’t issue advisory opinions. See San Juan

Hut Sys., Inc. v. Bd. of Cnty. Comm’rs, 2023 COA 10, ¶ 50.

X. Disposition

¶ 92 The judgment is affirmed.

JUDGE TOW and JUDGE LUM concur.

45